Amicus Curiae Brief — Cox Communications, Inc., et al., Petitioners v. Sony Music Entertainment, et al.

No. 24-171

IN THE

Supreme Court of the United States

__________

COX COMMUNICATIONS, INC., ET AL.,

Petitioners,

v.

SONY MUSIC ENTERTAINMENT, ET AL.,

Respondents.

__________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

__________

BRIEF OF ALTICE USA, INC.,

FRONTIER COMMUNICATIONS PARENT INC.,

LUMEN TECHNOLOGIES, INC., AND VERIZON

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

__________

MARK D. NIELSEN

PAUL R. GARCIA

FRONTIER COMMUNICATIONS

PARENT, INC.

1919 McKinney Avenue

Dallas, Texas 75201

September 16, 2024

JOSHUA D. BRANSON

Counsel of Record

SCOTT H. ANGSTREICH

DEREK C. REINBOLD

ASHLE J. HOLMAN

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(jbranson@kellogghansen.com)

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 3

I. The Fourth Circuit’s Decision Conflicts

With The Traditional Common-Law

Limits On Secondary Liability Set Forth

In Twitter .......................................................... 3

A. Contributory Copyright Infringement,

Like Common-Law Aiding and Abetting, Requires Active Participation in

Misconduct .................................................. 4

B. The Decision Below Inverts the

Common-Law Distinction Between

Active Misconduct and Passive Nonfeasance ....................................................... 9

II. The Question Presented Is Exceptionally

Important To The Future Of The

Internet ........................................................... 12

CONCLUSION.......................................................... 19

ii

TABLE OF AUTHORITIES

CASES

Page

Aguilar v. PNC Bank, N.A., 853 F.3d 390

(8th Cir. 2017)........................................................ 7

Aimster Copyright Litig., In re, 334 F.3d 643

(7th Cir. 2003)........................................................ 4

Amazon Servs. LLC v. United States Dep’t of

Agric., 109 F.4th 573 (D.C. Cir. 2024) .................. 8

BMG Rights Mgmt. (US) LLC v. Cox Commc’ns,

Inc., 881 F.3d 293 (4th Cir. 2008) ......................... 5

Capitol Records, Inc. v. Thomas, 579 F. Supp.

2d 1210 (D. Minn. 2008) ...................................... 18

Cobb v. Indian Springs, Inc., 522 S.W.2d 383

(Ark. 1975) ............................................................. 9

Cobbler Nevada, LLC v. Gonzales, 901 F.3d

1142 (9th Cir. 2018) ............................................. 16

Doe v. GTE Corp., 347 F.3d 655 (7th Cir.

2003)................................................................. 7, 10

Eight Mile Style, LLC v. Spotify USA Inc., 2024

WL 3836075 (M.D. Tenn. Aug. 15, 2024) ........... 17

Halberstam v. Welch, 705 F.2d 472 (D.C. Cir.

1983).................................................................... 8-9

Metro-Goldwyn-Mayer Studios Inc. v. Grokster,

Ltd., 545 U.S. 913 (2005)............................4, 10, 19

People v. Brophy, 120 P.2d 946 (Cal. Ct. App.

1942)................................................................. 7, 10

Rael v. Cadena, 604 P.2d 822 (N.M. Ct. App.

1979)....................................................................... 9

Sony Corp. of Am. v. Universal City Studios,

Inc., 464 U.S. 417 (1984) ....................................... 4

iii

Strike 3 Holdings, LLC v. Doe:

351 F. Supp. 3d 160 (D.D.C. 2018), rev’d and

remanded, 964 F.3d 1203 (D.C. Cir. 2020) ......... 15

964 F.3d 1203 (D.C. Cir. 2020) ...................... 17-18

Twitter, Inc. v. Taamneh, 598 U.S. 471 (2023) ..... 3-12

Underhill v. Schenck, 143 N.E. 773 (N.Y. 1924)........ 4

United States v. Thompson:

728 F.3d 1011 (9th Cir. 2013) ............................. 11

539 F. App’x 778 (9th Cir. 2013) ......................... 11

Warner Bros. Records, Inc. v. Berry, 2008 WL

1320969 (S.D.N.Y. Apr. 9, 2008) ......................... 18

STATUTES AND RULES

American Rescue Plan Act of 2021, Pub. L. No.

117-2, 135 Stat. 4 ................................................. 13

§ 7402(c), 135 Stat. 109 (reprinted in 47 U.S.C.

§ 254 note) ............................................................ 13

§ 9901(a), 135 Stat. 233 (codified at 42 U.S.C.

§ 804(a))................................................................ 13

Communications Act of 1934, 47 U.S.C. § 151

et seq.:

§ 230(b)(1) ........................................................ 1, 13

§ 1302(a) ............................................................... 13

§ 1302(d)(1) .......................................................... 13

Consolidated Appropriations Act, 2021, Pub. L.

No. 116-260, 134 Stat. 1182 (2020):

§ 904(b)(1), 134 Stat. 2130-31 ............................. 13

§ 904(i)(2), 134 Stat. 2135 ................................... 13

iv

Copyright Act of 1976 (17 U.S.C.):

§ 504(c)(1)-(2) ......................................................... 2

§ 512(i)(1)(A) .......................................................... 6

§ 512(l ) ................................................................... 6

Digital Millennium Copyright Act, Pub. L. No.

105-304, 112 Stat. 2860 (1998) ............................. 6

Infrastructure Investment and Jobs Act, Pub.

L. No. 117-58, div. J, tit. IV, 135 Stat. 429,

1382 (2021) .......................................................... 13

Fed. R. Civ. P. 26(d)(1).............................................. 17

ADMINISTRATIVE MATERIALS

Fed. Commc’ns Comm’n, Keep Americans

Connected Pledge (updated July 8, 2020),

https://www.fcc.gov/keep-americansconnected ............................................................. 16

Second Further Notice of Proposed Rulemaking,

Order on Reconsideration, Second Report

and Order, and Memorandum Opinion and

Order, Lifeline and Link Up Reform and

Modernization, 30 FCC Rcd 7818 (2015) ............ 14

OTHER MATERIALS

BBC News, Grandfather caught in music fight

(Sept. 9, 2003), https://bbc.in/3TiVwGm ............. 18

Broadband USA, Public Notice Posting of State

and Territory BEAD and Digital Equity

Plan, Initial Proposals, and Challenge

Process Portals, available at https://bit.ly/

456Ptrs ................................................................. 13

v

CNN, 12-year-old settles music swap lawsuit

(Feb. 18, 2004), https://cnn.it/47hHJW7 ............. 18

Wes Davis, Music labels sue Verizon for more

than $2.6 billion, The Verge (July 15, 2024),

https://bit.ly/3XycSSc .......................................... 14

Dan B. Dobbs et al., The Law of Torts (2d ed.

May 2023 update) .................................................. 5

Clara Eisinger, More illegal music notices

issued by RIAA, The Ithacan (Oct. 11, 2007),

https://bit.ly/3XtmzRz .................................... 15-16

Benny Evangelista, Download lawsuit dismissed /

RIAA drops claim that grandmother stole

online music, S.F. Chron. (Sept. 25, 2003),

https://bit.ly/4cMiJaI ........................................... 18

Sarah McBride & Ethan Smith, Music Industry

to Abandon Mass Suits, Wall St. J. (Dec.

19, 2008), available at https://on.wsj.com/

47aOIAj ................................................................ 18

Declan McCullagh, RIAA apologizes for threatening letter, CNET (May 13, 2003), https://

cnet.co/3TfXzux.................................................... 15

Peter S. Menell & David Nimmer, Unwinding

Sony, 95 Cal. L. Rev. 941 (2007) ........................... 5

3 Nimmer on Copyright (2024) ................................... 4

Restatement (Third) of Torts: Liability for

Economic Harm (2020) ....................................... 7-9

Joel Selvin & Neva Chonin, Artists blast record

companies over lawsuits against downloaders, S.F. Chron. (Sept. 11, 2003), https://bit.ly/

3TiVChc ................................................................ 18

Spotify, Premium, https://www.spotify.com/us/

premium/ .............................................................. 17

INTEREST OF AMICI CURIAE 1

Amici curiae and their subsidiaries are among

the nation’s leading internet service providers. They

enable their customers to benefit from all the internet

has to offer—education, work, healthcare, news, information, government services, online shopping, and

entertainment. They also perform a critical public

service by developing, operating, and maintaining the

networks Americans rely on for high-speed internet

access. Since 1996, amici have invested hundreds of

billions of dollars in network infrastructure. That

investment has given consumers the ability to access

the internet at ever-increasing speeds. And it prepared the entire U.S. economy for an unexpected—but

necessary—increased reliance on broadband networks

during and after the COVID-19 pandemic.

Amici ’s past and current investments fulfill not just

their business interests, but also federal policy goals.

In 1996, Congress announced that it “is the policy of

the United States” “to promote the continued development of the Internet.” 47 U.S.C. § 230(b)(1). And in

the past few years, Congress appropriated more than

$75 billion to ensure that all Americans have access to

reliable high-speed broadband.

This case strikes at the heart of that effort. The

court of appeals’ rule saddles internet service providers

with responsibility for online copyright infringement

committed by others. That is not because internet

service providers culpably participate in the infringement. Quite the opposite: while a few of amici ’s

1 No counsel for a party authored this brief in whole or in part.

No person or entity other than amici or their counsel made a

monetary contribution to the preparation or submission of this

brief. Counsel of record for all parties received timely notice of

the intention to file this brief.

2

customers may use their internet connections to share

copyrighted material, amici do not participate in,

encourage, or in any way assist those efforts. In fact,

amici forbid copyright infringement through robust

anti-piracy policies and programs. When subscribers

violate those policies and share copyrighted music

over the internet, amici are mere passive conduits for

the infringing activity—taking no action to assist it.

Indeed, amici neither host infringing content on their

servers nor monitor what their subscribers do online.

Yet the court of appeals still concluded that an

internet service provider like Cox can be secondarily

liable whenever the provider knows an account has

been used for music piracy and fails to terminate

the account holder’s internet service. That holding

exposes internet service providers to up to $150,000

in statutory damages per work infringed. 17 U.S.C.

§ 504(c)(1)-(2).

At thousands of works allegedly

infringed, the numbers can quickly become immense.

The decision below also threatens consequences beyond

copyright. Under the court of appeals’ expansive

theory, an internet service provider acts culpably

whenever it knowingly fails to stop some bad actor

from exploiting its service. The common law does not

tolerate such boundless liability. Amici write to explain

why the court of appeals’ erroneous ruling raises

profound questions that warrant this Court’s review.

SUMMARY OF ARGUMENT

The decision below imperils the future of the internet.

It exposes internet service providers to massive liability if they do not carry out mass internet evictions.

For example, Cox faced a $1 billion verdict, Frontier is

currently defending a $400 million lawsuit, Altice

USA is defending a lawsuit with an immense range of

potential statutory damages, and recent press reports

3

suggest Verizon is facing up to $2.6 billion in potential

liability—all because they failed to terminate internet

accounts allegedly used for copyright infringement.

The extortionate pressure such lawsuits exert is

acute. And the mass terminations they encourage

would harm innocent people by depriving households,

schools, hospitals, and businesses of internet access.

The threat of liability detracts from amici ’s continued

innovation to fulfill Congress’s goal of connecting all

Americans to the internet.

The Court should grant certiorari to avoid that

outcome. Had the decision below hewed to this

Court’s precedents, it would not have come up with

such a sweeping liability rule. The Fourth Circuit

invented that rule not only by misapplying this

Court’s copyright precedents, but also by upending the

traditional common-law principles those precedents

reflect. Indeed, the Fourth Circuit’s only reason for

upholding contributory infringement here—comparing

Cox’s provision of routine internet service to a bank

robber’s accomplice arming him with a hammer—distorted common-law notions of culpability beyond all

recognition. That ruling warrants this Court’s review

and correction. Returning contributory infringement

to its common-law moorings will resolve a circuit split,

align copyright doctrine with this Court’s other precedents, and promote vital national interests in safeguarding the continued development of the internet.

ARGUMENT

I. The Fourth Circuit’s Decision Conflicts With

The Traditional Common-Law Limits On

Secondary Liability Set Forth In Twitter

Amici agree with Cox that the Fourth Circuit’s

decision deepens a circuit split and conflicts with this

Court’s precedents addressing secondary copyright

4

infringement. Pet. 15-29. They write to amplify Cox’s

arguments (at 27-28) that the decision below also

flouts the traditional secondary-liability principles

this Court recently recognized in Twitter, Inc. v.

Taamneh, 598 U.S. 471 (2023). That conflict heightens the need for certiorari.

A. Contributory Copyright Infringement, Like

Common-Law Aiding and Abetting, Requires

Active Participation in Misconduct

1. The Copyright Act contains no express cause of

action for contributory copyright infringement. See

Sony Corp. of Am. v. Universal City Studios, Inc., 464

U.S. 417, 434 (1984). But in a time when courts still

inferred secondary liability from statutory silence,

courts implied the “doctrine[ ] of secondary liability”

for others’ copyright violations “from common law

principles”—namely, the “rules of fault-based liability

derived from the common law.” Metro-GoldwynMayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913,

930-31, 934-35 (2005); see also 3 Nimmer on Copyright

§ 12.04[C][4][b] (2024) (describing “contributory infringement” as a “judge-made remed[y] imported from the

common law of torts”). “[T]he concept of contributory

infringement” is thus “a species of the broader problem of identifying the circumstances in which it is just

to hold one individual accountable for the actions of

another.” Sony, 464 U.S. at 435.

Contributory copyright infringement is rooted in

the law of aiding and abetting. See, e.g., In re Aimster

Copyright Litig., 334 F.3d 643, 651 (7th Cir. 2003)

(describing “the law of aiding and abetting” as “the

criminal counterpart to contributory infringement”);

Underhill v. Schenck, 143 N.E. 773, 776 (N.Y. 1924)

(“contributing infringer” assumes the “guilt” of the

principal infringer “whom he has aided and abetted”).

As Professor Nimmer explained, contributory infringe-

5

ment draws from “indirect tort liability,” including for

“aiding, abetting, or encouraging the infringing act.”

Peter S. Menell & David Nimmer, Unwinding Sony,

95 Cal. L. Rev. 941, 1012-13 (2007); see also Dan B.

Dobbs et al., The Law of Torts § 741 & n.42 (2d ed.

May 2023 update) (describing “aiding and abetting”

as the “premise of contributory infringement”). The

Fourth Circuit itself said it was deriving its theory of

Cox’s contributory infringement from the “law of aiding and abetting.” BMG Rights Mgmt. (US) LLC v.

Cox Commc’ns, Inc., 881 F.3d 293, 309 (4th Cir. 2008).

But the Fourth Circuit’s rule runs roughshod

over the traditional common-law limits on aiding-andabetting liability. This Court recently clarified those

principles in Twitter. That case addressed claims that

Twitter and other social-media companies aided and

abetted terrorism by knowingly failing to stop ISIS

from using their platforms to raise funds and attract

recruits. See 598 U.S. at 481-82. In assessing those

claims, the Court invoked the same principles that

have “animated aiding-and-abetting liability for

centuries,” searching for “conscious, voluntary, and

culpable participation in another’s wrongdoing.” Id.

at 493. Under the common law, the Court stressed,

“truly culpable conduct” exists when “the defendant

consciously and culpably participated in a wrongful

act so as to help make it succeed.” Id. at 489, 493

(cleaned up). The Court emphasized the need for such

active wrongdoing more than a dozen times.2

2 E.g., 598 U.S. at 489 (aiding-and-abetting liability requires

“truly culpable conduct”); id. at 490 (“culpable misconduct”);

id. at 492 (“conscious, ‘culpable conduct’ ”) (citation omitted);

id. at 493 (“conscious, voluntary, and culpable participation in

another’s wrongdoing”); id. at 497 (“such knowing and substantial

assistance . . . that [defendants] culpably participated in the . . .

attack”); id. at 498 (“culpably associated themselves with the . . .

6

A communication provider’s failure to stop bad

actors from misusing its service does not qualify. Under

the common law, this Court explained, “communicationproviding services” have no “duty” “to terminate

customers after discovering that the customers were

using the service for illicit ends.” Id. at 501.3 For that

reason, the Court held that the social-media companies’

continued provision of routine communication service

to terrorists was “mere passive nonfeasance” that did

not amount to culpable aid. Id. at 500. And in words

that could have been written for this case, the Court

explained that it “would run roughshod over the

typical limits on tort liability and take aiding and

abetting far beyond its essential culpability moorings”

to hold a “communication provider” liable “merely for

knowing that . . . wrongdoers were using its services

and failing to stop them.” Id. at 503.

attack, participated in it as something that they wished to bring

about, or sought by their action to make it succeed”) (cleaned up);

id. at 500 (“somehow culpable with respect to the . . . attack”);

id. at 500-01 (“culpable assistance or participation in the . . .

attack”); id. at 503 (plaintiffs’ “burden to show that defendants

somehow consciously and culpably assisted the attack”); id. at

504 (“conscious and culpable conduct”); id. (aid “both significant

and culpable enough to justify attributing the principal wrongdoing to the aider and abettor”); id. (“whether defendants culpably associated themselves with ISIS’ actions”); id. at 506 (“The

point of aiding and abetting is to impose liability on those who

consciously and culpably participated in the tort at issue.”).

3 Internet service providers may choose to take advantage of

the Digital Millennium Copyright Act’s safe harbor by reasonably implementing a policy that provides for the termination of

repeat infringers in appropriate circumstances. See 17 U.S.C.

§ 512(i)(1)(A). But the DMCA does not create an independent

basis for liability. It does not make a repeat-infringer termination

policy mandatory, and a company’s failure to reasonably implement one does not suggest that it is liable as a contributory

infringer. See id. § 512(l ).

7

2. Twitter drew heavily on common-law principles,

emphasizing the long “tradition from which” aidingand-abetting liability arises. 598 U.S. at 485. Three

of those principles are especially relevant.

First, passive nonfeasance cannot support aidingand-abetting liability. Aiding and abetting instead

requires “ ‘[s]ubstantial assistance’ ” to the primary

wrongdoer, which “means active participation” in that

bad actor’s misconduct. Restatement (Third) of Torts:

Liability for Economic Harm § 28 cmt. d (2020). “The

defendant must have associated himself in some way

with the principal in bringing about the commission of

the crime.” Aguilar v. PNC Bank, N.A., 853 F.3d 390,

403 (8th Cir. 2017) (cleaned up). “[M]ere negative

acquiescence is not sufficient.” Id.

A business that merely knows some people are using

its product for nefarious ends is not liable as an aider

and abettor, even if it consciously fails to stop them.

At common law, courts did not impose aiding-andabetting liability on companies that served customers

“after discovering that the customers were using the

service for illicit ends.” Twitter, 598 U.S. at 501 (citing

Doe v. GTE Corp., 347 F.3d 655, 659 (7th Cir. 2003);

People v. Brophy, 120 P.2d 946, 956 (Cal. Ct. App.

1942)). For example, telephone companies did not aid

and abet the bookies who received horse racing information over the phone. See Brophy, 120 P.2d at 956

(“[p]ublic utilities and common carriers are not the

censors of public or private morals”). And web-hosting

companies did not aid and abet illicit websites despite

“profit[ing] from the sale of server space and bandwidth.”

Doe, 347 F.3d at 659. Aiding and abetting requires some

act to support the wrongdoing—not mere knowledge

that a customer is doing something wrong.

8

Second, substantial assistance “ordinarily means

something more than routine professional services

provided to the primary wrongdoer.” Restatement

(Third) § 28 cmt. d. Amazon, for example, did not

aid and abet the unlawful importation of plant and

animal products simply by allowing “third-party actors”

to use its “fulfillment service to import” those products.

Amazon Servs. LLC v. United States Dep’t of Agric.,

109 F.4th 573, 582 (D.C. Cir. 2024). Key there was the

lack of evidence that Amazon gave the third parties

“ ‘any special treatment or words of encouragement’ or

‘took any action at all’ with respect to the unlawful

acts.” Id. (quoting Twitter, 598 U.S. at 498).

Providing routine services to a wrongdoer generally

counts as substantial assistance only if done under

“unusual circumstances” or “in an unusual way.”

Halberstam v. Welch, 705 F.2d 472, 487 (D.C. Cir.

1983); see Twitter, 598 U.S. at 485 (noting that Halberstam has “[l]ong” been “regarded as a leading case

on civil aiding-and-abetting and conspiracy liability”).

For example, a defendant who helped launder years of

stolen valuables, including gold ingots smelted in her

garage, did enough “in an unusual way under unusual

circumstances” to show she was “a willing partner” in

her partner’s burglaries. Halberstam, 705 F.2d at

486-87.

Third, courts typically do not find secondary liability

for insubstantial aid to economic torts, no matter the

defendant’s intentions. See Restatement (Third) § 28

reporter’s note d. Even encouraging the underlying

misconduct is not enough for aiding and abetting—

“liability is prudently imposed only for substantial

assistance.” Id. That rule reflects a “proportionality”

principle under which “a defendant’s responsibility

for the same amount of assistance increases with the

9

blameworthiness of the tortious act,” and vice-versa.

Halberstam, 705 F.2d at 484 n.13. When the harm is

just money, more substantial assistance is necessary.

Consistent with that “proportionality test,” id., less

substantial assistance is needed for secondary liability

in cases of serious, physical harm. The Third Restatement thus remarks that “[l]iability for mere encouragement may make sense with respect to certain kinds

of torts, as when bystanders in a crowd cheer on

one party who is assaulting another.” Restatement

(Third) § 28 reporter’s note d. For example, verbally

encouraging an assailant—“Kill him!” and “Hit him

more!”—counts as aiding and abetting the assault.

Rael v. Cadena, 604 P.2d 822, 822 (N.M. Ct. App.

1979). And telling a young motorist with a new car

to “run [the car] back up here and see what it will do”

is aiding and abetting assault when the motorist

strikes a bystander during a “test run.” Cobb v. Indian

Springs, Inc., 522 S.W.2d 383, 387 (Ark. 1975). Even

that “relatively trivial” aid can be culpable when

the result is bodily harm. Halberstam, 705 F.2d at

484 n.13; see Restatement (Third) § 28 cmt. d (“the

enormity of a wrong . . . may appropriately cause

such lesser acts to be considered aiding and abetting”).

But when the principal tort is less “blameworth[y]”—

like sharing a copyrighted song on the internet—

courts demand far more substantial aid before finding

the aider culpable. Halberstam, 705 F.2d at 484 n.13.

B. The Decision Below Inverts the CommonLaw Distinction Between Active Misconduct

and Passive Nonfeasance

The decision below made the same errors this

Court corrected in Twitter. The court of appeals ruled

that Cox materially contributed to its subscribers’

infringement by knowingly failing to cut their internet

10

connections. Pet. App. 26a n.4. It did so because it

thought that “supplying a product with knowledge

that the recipient will use it to infringe copyrights

is exactly the sort of culpable conduct sufficient for

contributory infringement.” Id. at 27a.

That holding upends traditional common-law

culpability principles and conflicts with Twitter. First,

Cox offered only passive aid to alleged infringers. The

court of appeals held that Cox knew of instances of

copyright infringement and failed to terminate service

despite that knowledge. See id. Although the court

below framed that as active aid, the common law

makes clear it is non-culpable inaction. That was

Twitter’s core holding: a communication provider that

continues to provide its routine service to a wrongdoer, even consciously, commits “mere passive nonfeasance.” 598 U.S. at 500. To hold Cox “liable . . .

merely for knowing that . . . wrongdoers were using

its services and failing to stop them” would “run

roughshod over the typical limits on tort liability

and take aiding and abetting far beyond its essential

culpability moorings.” Id. at 503.

Second, Cox provided routine services to its

subscribers in an ordinary way. The same was true

of Twitter, which “supplied generally available virtual

platforms that ISIS made use of.” Id. at 505. And of

the phone companies in Brophy, which knew illegal

bookies used their phone lines. 120 P.2d at 956. And

of the web-hosting companies in GTE, whose “services

likewise may be used to carry out illegal activities.”

347 F.3d at 659. The result here should have been

the same as in all those cases—no liability. That

some people misuse internet access “does not justify

condemning their provision whenever a given customer

turns out to be crooked.” Id.; see also Grokster, 545

U.S. at 937 (cautioning against “trenching on regular

11

commerce or discouraging the development of technologies with lawful and unlawful potential”).4

The court of appeals erred in holding otherwise.

Leaning on a faulty analogy to United States v.

Thompson, 728 F.3d 1011 (9th Cir. 2013), the court

concluded that Cox’s continued sales of internet service was like “[l]ending a friend a hammer . . . with

knowledge that the friend will use it to break into

a credit union ATM.” Pet. App. 27a. But lending

a friend a hammer, especially when done in unusual

circumstances, is nothing like supplying a “generally

available” service “to the internet-using public.” Twitter, 598 U.S. at 498. Thompson itself illustrates the

point. The hammer-lending defendant there attended

an in-person meeting with his bank-robber “friend”

and a second accomplice, right before the robbery. 728

F.3d at 1013. The defendant brought a hammer, and

the second accomplice brought a “thermal lance,”

which is “a tool designed to cut through metal using

extreme heat.” Id. at 1012-13. Each gave the tool

he brought to the robber for the specific purpose of

enabling the robbery. And then the defendant participated in “forty-five calls” with the robber—“the leader

of the conspiracy”—“during the evening of the crime.”

United States v. Thompson, 539 F. App’x 778, 780 (9th

Cir. 2013). Giving the bank robber a hammer under

those unusual circumstances justified liability for

aiding and abetting larceny. See id. Cox’s continued

4 As Cox explains (at 9), internet service providers can glean

only limited information about infringing activity from the

millions of automatic notices they receive. Such notices generally

connect an episode of alleged infringement only to an IP address

—not to the person actually doing the alleged infringing. Here,

the bulk of notices Cox received connected the alleged piracy to

large account holders such as universities, military housing, and

regional service providers. See Pet. 11.

12

provision of routine internet access, which it (like

amici ) offers the general public, is not comparable.

***

The court of appeals might not have made these

errors had it applied Twitter. And Cox flagged that

decision in a supplemental filing nine months before

the court of appeals ruled here. No. 21-1168, ECF 87.

But for unexplained reasons, Twitter goes unmentioned

in the court’s opinion.

Yet Twitter confirms that the court erred. By

“hold[ing] a[ ] . . . communication provider liable for

. . . wrongdoing merely for knowing that the wrongdoers were using its services and failing to stop them,”

the court “r[a]n roughshod over the typical limits on

tort liability and t[ook] aiding and abetting far beyond

its essential culpability moorings.” 598 U.S. at 503.

Just as this Court granted certiorari and reversed in

Twitter, see id. at 482, 507, it should do the same here.

II. The Question Presented Is Exceptionally

Important To The Future Of The Internet

Twitter’s warning about the dangers of “run[ning]

roughshod” over traditional secondary-liability limits

is particularly salient here. 598 U.S. at 503. The

Fourth Circuit’s view of contributory infringement

would force internet service providers to cut off

any subscriber after receiving allegations that some

unknown person used the subscriber’s connection for

copyright infringement. And the consequences could

extend even beyond copyright. Under the Fourth

Circuit’s theory, a “communication provider” could be

said to act culpably whenever it knowingly “fail[s] to

stop” some unknowable “bad actor[ ]” from exploiting

its service. Id. Enterprising plaintiffs’ lawyers could

seek to hold internet service providers liable for every

bad act that occurs online.

13

Such a rule thwarts federal communications policy.

As early as 1996, Congress had identified the promise

of the then-nascent internet, declaring it is “the policy

of the United States” “to promote the continued development of the Internet.” 47 U.S.C. § 230(b)(1). At the

same time, Congress instructed the Federal Communications Commission to use its authority to “encourage the deployment on a reasonable and timely basis

of advanced telecommunications capability”—internet

access—“to all Americans.” Id. § 1302(a), (d)(1). And

more recently, Congress has taken steps to ensure

that all Americans have access to affordable, reliable,

high-speed broadband through multi-billion-dollar

subsidies for household internet subscriptions,5 and

substantial capital funds to support broadband and

related projects throughout the country.6

5 Through the Emergency Broadband Benefit Program and the

Affordable Connectivity Program, Congress appropriated nearly

$17.5 billion that was used to provide more than 21 million

households with a monthly subsidy for their broadband internet

access. See Infrastructure Investment and Jobs Act, Pub. L. No.

117-58, div. J, tit. IV, 135 Stat. 429, 1382 (2021) (appropriating

$14.2 billion); Consolidated Appropriations Act, 2021, Pub. L. No.

116-260, § 904(b)(1), (i)(2), 134 Stat. 1182, 2130-31, 2135 (2020)

(appropriating $3.2 billion).

6 In the American Rescue Plan Act, Congress created both

the $10 billion Capital Projects Fund and the $7.17 billion

Emergency Connectivity Fund. See American Rescue Plan Act of

2021, Pub. L. No. 117-2, § 9901(a), 135 Stat. 4, 223, 233 (codified

at 42 U.S.C. § 804(a)); id. § 7402(c), 135 Stat. 109 (reprinted in

47 U.S.C. § 254 note). And the Broadband Equity, Access, and

Deployment Program is a voluntary federal program that makes

available $42.45 billion for States to fund the deployment of

new networks to bring broadband to unserved and underserved

areas of the country. See Broadband USA, Public Notice Posting

of State and Territory BEAD and Digital Equity Plan, Initial

Proposals, and Challenge Process Portals, available at

https://bit.ly/456Ptrs (last accessed Sept. 4, 2024).

14

Amici play a critical role in those efforts to bring

broadband to all Americans. They have invested

hundreds of billions of dollars to deploy and improve

the networks that hundreds of millions of Americans

rely on daily for internet access. Work, school,

telemedicine, and keeping in touch with loved ones

all depend on the ability to get online. As the FCC

noted, “institutions and schools, and even government

agencies, require Internet access for full participation

in key facets of society.”7

The court of appeals’ approach cuts sharply against

those efforts. It would compel internet service providers

to engage in wide-scale terminations to avoid facing

crippling damages, like the $1 billion judgment entered

against Cox here, the $2.6 billion damages figure

touted by these same plaintiffs in a recent suit against

Verizon,8 or the similarly immense figures sought from

Frontier and Altice USA. Such terminations come

with several significant costs.

First, an overbroad termination requirement based

on allegations of copyright infringement can be dangerous. When amici terminate a subscriber’s internet

account, it affects not just the subscriber but also risks

affecting the subscriber’s family, business, school,

or community. For example, people in a subscriber’s

household—who did not infringe and may have no

connection to the infringer—may be home-based

employees using the internet service to work, or may

rely on internet-connected medical devices for their

7 Second Further Notice of Proposed Rulemaking, Order on

Reconsideration, Second Report and Order, and Memorandum

Opinion and Order, Lifeline and Link Up Reform and Modernization, 30 FCC Rcd 7818, ¶ 4 (2015).

8 See Wes Davis, Music labels sue Verizon for more than

$2.6 billion, The Verge (July 15, 2024), https://bit.ly/3XycSSc.

15

health and internet-monitored security systems for

their safety. Losing internet access puts them at risk.

For some customers in rural and hard-to-serve places

where there is only one internet service provider, this

means being cut off from the rest of the modern world.

And the effect is even more pronounced for coffee

shops, hospitals, regional internet service providers,

and universities—all of which the Fourth Circuit

swept up in its categorical rule. See Pet. 34-35.

Second, the automated processes that copyright

holders use to flag copyright infringement on peerto-peer networks are “famously flawed.” Strike 3

Holdings, LLC v. Doe, 351 F. Supp. 3d 160, 161-62

(D.D.C. 2018), rev’d and remanded on other grounds,

964 F.3d 1203 (D.C. Cir. 2020). For example, decades

ago the Penn State astrophysics department received

an infringement notice from the same record companies suing here because the department’s file directory

included a folder named “usher,” which the music

industry’s automated program mistook for the musician

Usher. The infringement notice came during final

exams and almost resulted in the department losing

internet access.9 Similarly, a student at Ithaca

College received an infringement notice accusing her

of illegally downloading a song that she had uploaded

to her computer from a CD.10 Another student had

charges brought against him by the school’s Office

of Judicial Affairs based on an infringement notice.

The student had never even heard of the song he was

accused of downloading, and the charges were later

dropped after the office suspected someone hacked his

9 See Declan McCullagh, RIAA apologizes for threatening letter,

CNET (May 13, 2003), https://cnet.co/3TfXzux.

10 See Clara Eisinger, More illegal music notices issued by

RIAA, The Ithacan (Oct. 11, 2007), https://bit.ly/3XtmzRz.

16

IP address.11 But the Fourth Circuit’s rule would have

amici kick him, and others like him, off the internet.

Third, the costs of termination are high. Given

the extraordinary COVID-19 pandemic, many amici

stopped terminating customers for nonpayment or

other reasons. The FCC supported that activity

through its “Keep Americans Connected Initiative,”

which aimed “to ensure that Americans do not lose

their broadband or telephone connectivity as a result

of the[ ] exceptional circumstances” the pandemic

created.12 But under the court’s view here, that

public-minded conduct would support a finding of

secondary liability.

Terminating a customer’s internet access prevents

anyone from using that connection not just for

copyright infringement, but also for any legitimate

purpose. Termination prevents everyone who relies

on a shared internet connection—in a household,

coffee shop, office, school, library, or hospital—from

using the internet for any purpose. They cannot look

for a job, pay their bills, read the news, communicate

with co-workers, post homework assignments, or check

prescription medications. Termination also punishes

family members, patrons, co-workers, teachers,

students, doctors, nurses, and patients for the actions

of one individual. And because it is possible to connect

to someone else’s Wi-Fi without their knowledge

or consent, the infringing individual may have no

connection to those who will bear the costs of losing

internet access. See, e.g., Cobbler Nevada, LLC v.

Gonzales, 901 F.3d 1142, 1145, 1149 (9th Cir. 2018)

11 See id.

12 FCC, Keep Americans Connected Pledge (updated July 8,

2020), https://www.fcc.gov/keep-americans-connected (last accessed

Sept. 4, 2024).

17

(similar claim against manager of an “adult care

home” whose residents were using the manager’s

internet subscription to infringe).

And for what? It would be one thing if the damages

in these cases stemmed from any real calculation of

pocket-book harm to the music-industry plaintiffs.

But consumers can buy access to nearly all recorded

music in existence for $11.99 per month through

streaming services like Spotify,13 download a song

from iTunes for even less, or listen for free on

YouTube. And the individual labels that license their

catalogs to such services collect only a fraction of those

amounts. Small wonder, then, that the actual monetary harm here was in the thousands of dollars for

the approximately 10,000 infringed works—a number

dwarfed by respondents’ billion-dollar statutorydamages verdict. The result is “a copyright regime that

rewards rights holders in proportion to their strategic

acumen and litigation budgets—not the value of their

works.” Eight Mile Style, LLC v. Spotify USA Inc.,

2024 WL 3836075, at *22 (M.D. Tenn. Aug. 15, 2024).

Returning contributory copyright infringement to

its common-law roots would guard against these

outcomes. And it would not leave copyright owners

without a remedy. They can still use any evidence

they collect of online infringement to serve subpoenas

to learn the identity of the customer whose internet

access was used for infringement.14 The subpoenas

can then lead to direct actions against the actual

13 See Spotify, Premium, https://www.spotify.com/us/premium/

(last accessed Sept. 4, 2024).

14 See, e.g., Strike 3 Holdings, LLC v. Doe, 964 F.3d 1203, 1214

(D.C. Cir. 2020) (reversing district court denial of copyright

owner’s Rule 26(d)(1) motion to serve subpoena on internet service provider to identify account holder).

18

infringers.15 Indeed, before embarking on this effort

to hold internet service providers liable for their users’

actions, music labels and publishers used to sue those

users directly. But the industry found that suing

individuals—like a 12-year-old girl,16 a homeless man,17

grandparents,18 and a single mother who had shared

24 songs online19—created “a public-relations disaster.”20 The industry’s mass litigation campaign was

even unpopular among musicians: one artist, for

example, described the suits as “scare tactics.”21

So the music labels no longer appear willing to sue

individual people who commit music piracy. Instead,

they want internet service providers to enforce their

copyrights for them, or to pay dearly if they fail to do

so to the labels’ liking. But if piracy remains such a

vital problem—as opposed to a litigation profit center

15

See id. at 1212 (noting that copyright owner may need

to plead additional facts to allege that account holder is the

infringer).

16 See CNN, 12-year-old settles music swap lawsuit (Feb. 18,

2004), https://cnn.it/47hHJW7.

17 See Warner Bros. Records, Inc. v. Berry, 2008 WL 1320969,

at *4 n.1 (S.D.N.Y. Apr. 9, 2008).

18 See Benny Evangelista, Download lawsuit dismissed / RIAA

drops claim that grandmother stole online music, S.F. Chron.

(Sept. 25, 2003), https://bit.ly/4cMiJaI; BBC News, Grandfather

caught in music fight (Sept. 9, 2003), https://bbc.in/3TiVwGm.

19 See Capitol Records, Inc. v. Thomas, 579 F. Supp. 2d 1210,

1227 (D. Minn. 2008).

20 Sarah McBride & Ethan Smith, Music Industry to Abandon

Mass Suits, Wall St. J. (Dec. 19, 2008), available at

https://on.wsj.com/47aOIAj.

21 Joel Selvin & Neva Chonin, Artists blast record companies

over lawsuits against downloaders, S.F. Chron. (Sept. 11, 2003),

https://bit.ly/3TiVChc.

19

for these multi-billion-dollar record labels—the labels

are free to start again pursuing the infringers directly.

Or as in Grokster, they can sue the providers of

any software or websites designed and marketed for

piracy. While these individual infringers and piracysoftware providers may lack deep pockets and be

harder to sue than internet service providers, that

is no reason to upend the common-law limits on

contributory infringement and thwart Congress’s

efforts to make high-speed internet access available to

all Americans.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

MARK D. NIELSEN

PAUL R. GARCIA

FRONTIER COMMUNICATIONS

PARENT, INC.

1919 McKinney Avenue

Dallas, Texas 75201

September 16, 2024

JOSHUA D. BRANSON

Counsel of Record

SCOTT H. ANGSTREICH

DEREK C. REINBOLD

ASHLE J. HOLMAN

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(jbranson@kellogghansen.com)